Warrantless-surveillance memos remain under wraps

WASHINGTON — The Justice Department is refusing to release legal memos the George W. Bush administration used to justify his warrantless-surveillance program, one of the most contentious civil liberties issues during the Republican president’s time in office.

In response to a Freedom of Information Act request, the department is withholding two legal analyses by then-government lawyer John Yoo and is revealing just eight sentences from a third Yoo memo dated Nov. 2, 2001. That memo is at least 21 pages long.

Each of the three memos was summarized in a public report more than two years ago by five inspectors general. The Justice Department’s Office of Legal Counsel says Yoo memos from Feb. 8, 2002, and Oct. 11, 2002, were classified and protected from public disclosure by the deliberative-process privilege. The Nov. 2 memo was withheld almost in its entirety for an additional reason, that it was covered by non-disclosure provisions in federal laws.

Yoo’s work at the Justice Department during the Bush administration long has been intensely controversial, especially his authorship of memos defending the Bush administration’s use of harsh interrogation tactics against terrorist suspects.

The department’s Office of Legal Counsel, where Yoo worked, is in charge of providing controlling legal opinions to the president and all executive branch agencies.

Yoo’s memos on interrogation and warrantless surveillance were long ago withdrawn and replaced by his successors at the department. Amendments to the Foreign Intelligence Surveillance Act in 2008 spelled out the role of the courts in the surveillance process.

Key memos by Yoo and others at the Justice Department in support of harsh interrogation techniques have been publicly released — some by the Bush administration, others during Barack Obama’s presidency.

Two years ago, Matthew Aid, a private researcher, asked the Justice Department to release three Yoo memos on warrantless surveillance. The Office of Legal Counsel responded three weeks ago.

The eight sentences released from the Nov. 2, 2001, memo closely track the 2009 inspectors general summary. In that memo, Yoo wrote that FISA “cannot restrict the president’s ability to engage in warrantless searches that protect the national security.” According to the IGs’ report, the Feb. 8, 2002, memo said that Congress had not included a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless-surveillance activities. The Oct. 11, 2002, opinion reiterates the same basic analysis contained in Yoo’s Nov. 2, 2001, memo in support of the legality of the president’s warrantless-surveillance program, according to the IGs’ report.

Among the reasons Yoo’s memo has been controversial is that the Foreign Intelligence Surveillance Act, enacted in 1978, set up a secret court — before which only government lawyers appear — with power to grant, or reject, government applications for warrants to electronically eavesdrop on Americans’ communications in this country. The act stated that this procedure was the exclusive means by which such surveillance could be conducted.

The Project on Government Secrecy at the Federation of American Scientists first reported on the Justice Department’s decision on the FOIA request.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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